Burke v Toluono [2013] WSSC 9 (20 March 2013)

SUPREME COURT OF SAMOA

Burke v Toluono [2013] WSSC 9

Case name: Burke v Toluono

Citation: [2013] WSSC 9

Decision date: 20 March 2013

Parties:
Rosita Burke of Lano, Samoa and Hamilton, New Zealand, Nurse
Toluono Feti Toluono of Vaitele, Samoa, formerly a Member of Parliament

Hearing date(s): 9 and 15 May 2012

File number(s):

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order:

1. Judgment for the plaintiff as follows:
   • (a) Special damages of $90,000
   • (b) General damages of $30,000
2. The claim for exemplary damages is dismissed.
3. The plaintiff is entitled to costs which if not agreed upon counsel to file memorandum of costs within 21 days.

Representation:
Ameperosa Roma for plaintiff
TRS Toailoa for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Rookes v Barnard [1964] UKHL 1; (1964) AC 1129
Daniels v Thompson [1998] NZCA 3; (1998) 3 NZLR 22

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

ROSITA BURKE of Lano, Samoa and Hamilton, New Zealand, Nurse

Plaintiff

AND

TOLUONO FETI TOLUONO of Vaitele, Samoa, formerly a Member of Parliament

Defendant

Counsel:

A Roma for plaintiff

T R S Toailoa for defendant

Decision: 20 March 2013

DECISION OF THE COURT

The Plaintiff

1. Since September 1981, the plaintiff, Rosita Burke was the registered proprietor of a vacant parcel of land at Lotopa (the land) being part of the Stowers estate land. When she visited Samoa with her husband for a holiday in July 2010, she noticed the land was occupied, a house was built and people were obviously living on the land. She launched an inquiry and sought assistance which revealed.
   • (a) The land was conveyed by the plaintiff to the defendant by a deed of conveyance dated 10^th August 2007 for a consideration of $80,000. Signature was witnessed by the solicitor who prepared the deed.
   • (b) In January 2010 the defendant sold the land to the current registered owners for $47,893 who in turn mortgaged it to the National Bank.
2. Obviously she was disturbed and upset. She was not in Samoa in 2007, she did not sign any conveyance before a solicitor, she did not receive any purchase money and the defendant was a complete stranger to her.
3. Further inquiries led to the discovery of Lisa Stowers as the person who executed the deed of conveyance.

Lisa Stowers (Lisa)

4. Lisa lives on part of the Stowers estate land. She is married to a Stowers but were separated at the time she executed the deed of conveyance. She has admitted to the forgery.
5. Lisa has also admitted to the forgery in an earlier land transaction in 2004 in which she conveyed to the same defendant a parcel of land, also part of the Stowers estate land, registered under Theresa Taufau Stowers who also live and reside in New Zealand.
6. For her criminal conduct in the two transactions, Lisa pleaded guilty and was sentenced to a term of imprisonment.
7. Although he conceded that Lisa was one and the same person who executed the both deeds of conveyances in 2004 as Theresa Taufau Stowers and in 2007 as Rosita Burke, the defendant maintained that firstly he was convinced by Lisa before the two conveyances were executed she was the one and the same person known by both names, and secondly he also relied on his solicitor who engrossed and prepared the deed of conveyances to verify that Lisa was indeed the same person known as Theresa Taufau Stowers and Rosita Burke.
8. Contentions by the defendant were both rejected by this court in the civil proceeding which dealt with the transaction concerning the Theresa Taufau Stowers transaction and the criminal trial charging the defendant with his criminal conduct in both transactions. He is currently serving a term of imprisonment following his conviction.

Extra Marital relationship of the defendant and Lisa Stowers

9. It is common knowledge that Lisa and the defendant commenced a relationship in 2002. Both were married at the time. Lisa was separated from her Stowers husband, but lived on the Stowers land with her children and in laws. The defendant was still living with his wife. He was the Chief Executive Officer of the Electric Power Corporation whilst Lisa was a house maid at one of the hotels.
10. With her salary as homemaid, Lisa was struggling financially to maintain and upkeep her seven children, as she was not receiving any financial assistance from her husband who had taken another partner. There is nothing in the evidence to suggest that the defendant disclosed his marital status to Lisa. He did drop her off at the Stowers estate land after their outings and they regularly talked on their phone.
11. Following the Theresa Taufau Stowers transaction in 2004, Lisa moved to New Zealand in 2005. Whilst in New Zealand she maintained contacts with the defendant who also visited her in NZ. She returned to Samoa in late 2006 and the relationship continued as before until 2010 when the two fraudulent transactions were uncovered and investigated.

The Theresa Taufau Stowers Transaction

12. Before discussing the evidence surrounding the plaintiff’s claim and the circumstances which led to the transfer of the plaintiff’s land to the defendant, an examination, discussion and evaluation of the evidence surrounding the Theresa Taufau Stowers transaction and the logical conclusions and inferences to be drawn therefrom would facilitate the court in the determination of this claim.
13. It is of course no secret that the Theresa Taufau Stowers transaction was the subject of a civil action before Sapolu CJ which declared the transaction to be void for fraud. It was also, interalia, a subject of criminal charges against both Lisa and defendant, which resulted in both being given imprisonment sentences.
14. The defendant maintained it was Lisa, on the first night they met in 2002 at a night club, who persuaded him and his colleagues to buy the land. Following that night Lisa persistently rang him to buy, which lead him to consult his real estate friend.
15. Lisa was adamant it was the defendant who asked her if her family had lands. She responded the land belong to her.
16. Both Lisa and the defendant went to the Land Registry where a search of the Land Register revealed Theresa Taufau Stowers to be the registered owner. Lisa lied to the defendant that she was Theresa Taufau Stowers. The defendant told the court he believed Lisa. He also relied on his solicitor to do a search.
17. To avoid repetition, it is suffice to state here for the purpose of these proceedings that the defendant’s purported honest belief that Lisa was the same person as Taufau Stowers was rejected by Sapolu CJ in the civil proceedings concerning the Taufau Stowers transaction. The defendant failed to make inquiries when he discovered during the Land Registry search that Lisa was not the registered owner.
18. In my view the defendant knew at the time of the Land Registry was searched that Lisa could not and was not the same person as Theresa Taufau Stowers. A house maid with very limited knowledge, she would have had difficulty comprehending and understanding the entries in the land register. It was the defendant who pointed out to her at the Land Registry that Theresa Taufau Stowers was the registered owner. Her lies should have been detected, if she did lie to him, that she was Theresa Taufau Stowers.
19. Entries in the Land Register prompted the defendant to tell Lisa that Theresa Stowers was the owner. The entry on the register which told the defendant that Theresa Taufau Stowers was the registered owner would be the notation of the registration of the deed of conveyance of the land from Theresa Taufau Stowers as executrix to Theresa Taufau Stowers as devisee. More importantly there would also be a notation on the Land Register of the registration of a transmission of the estate of Michael Stowers the late husband of Theresa Taufau Stowers.
20. Both the Transmission and the deed of conveyance referred to in 19 and 20 above were registered in 1993, a blatant unequivocal proof that the husband of Theresa Taufau Stowers died prior to 1993, so that when Lisa told the defendant at the commencement of their affair in 2002 that she separated from her husband in 2002, Michael Stowers, was well and truly gone. Theresa Taufau Stowers, the widow of Michael Stowers could not be the same person as Lisa. If the photocopies obtained from the Land Registry were given to his solicitor, the solicitor should have known or at least put on notice.
21. The defendant knew then at the Land Registry, or shortly after, when he read the photocopies of the documents he took, that Lisa was not Theresa Taufau Stowers which follows, that when he took Lisa to the office of his solicitor to execute the deed of conveyance, he knew she was not Theresa Taufau Stowers. The obvious logical inference is that the defendant introduced Lisa to his solicitor as Theresa Taufau Stowers.

The Rosita Burke transaction: Testimony of Lisa

22. After her return form NZ in late 2006 the affair resumed and regular contacts maintained. Lisa told the court she received a telephone call from the defendant in 2007 and it was arranged that they would meet at the same lawyer’s office where she executed the Theresa Taufau Stowers transaction in 2004. She entered the office after phone contact with the defendant who was already with the lawyer when she entered the room. She was then given a document and was told by the defendant to sign the name Rosita Burke which she did and left the room.
23. Lisa did not receive the $80,000 purchase price stated in the deed of conveyance. She has always been known to the defendant as Lisa and has never known Rosita Burke until the two land transactions she executed were investigated. She met Rosita Burke for the first time whilst she was serving her imprisonment sentence for her involvement in the forgeries.

Testimony of the Defendant

24. After Lisa’s return from NZ in 2006 the defendant said Lisa not only showed her the land but she also gave him a plan of the land and also told him that her land was registered under her married named Burke. Passages of the relevant evidence given by the defendant in response to question by his counsel are at page 49 of the transcript (in translation):

Question What was her explanation about Burke, what did she say?

Answer: She said it was her married name but Stowers was her maiden name which means her birth name was Stowers, but it emerged after she married Stowers.

Question: So you knew later her husband was a Stowers?

Answer: Yes

Question So you believed what Lisa told you?

Answer Well at that time. I relied a lot on my solicitor.

25. In response also to questions by his counsel he said he paid $45,000 to Lisa for the land and about $2,000 to his solicitor for search fees.
26. He did not pay the $80,000 stated in the conveyance to Lisa because the agreed amount for the land purchase was $45,000. And the $45,000 was not paid before or at the time the conveyance was signed, it was paid by instalments directly to Lisa after execution of the deed, at the times and in amounts which the defendant deemed suitable.

Discussion

27. Lisa admitted under cross examination by defendant’s counsel that she told the police in her written police statement in 2010 that Rosita Burke who lived in New Zealand, was her husband’s cousin, and Lisa’s children under the supervision of her mother in law, also cleared and looked after the Stowers land including Rosita Burke’s land.
28. She also explained that it was only after the two transactions emerged and investigated by the police was she questioned by her husband’s family concerning the two names she signed on the conveyances. So when the police questioned her in 2010 she knew from her in-laws Rosita Burke owned the land.
29. But Lisa went to the Land Registry once and that was in 2004 before the transfer of the Theresa Taufau Stowers land. On that visit she was questioned only about the person Theresa Taufau Stowers.
30. There is not a slightest suggestion in the evidence that Lisa and the defendant paid another visit to the Land Registry after Lisa’s return from NZ and before the execution of the Rosita Burke conveyance.
31. Lisa may have known the parcel of land registered under the plaintiff Rosita Burke, but she could not have known the legal description of the land necessary for the lawyer to prepare the deed of conveyance.
32. That legal description was given by the defendant who instructed the same the lawyer to prepare the conveyance. He also told the lawyer the purchase price was $80,000. A search of the Land Registry could be the only place where the legal description was obtained.
33. Lisa did not obtain that legal description. If the defendant’s testimony that Lisa gave him the plain is to be believed, that plan alone would not contain the legal description.
34. When Lisa went to execute the deed of conveyance the defendant knew very well Lisa was not Rosita Burke. When he met Lisa in 2002 she was separated from her husband who was a Stowers. His assertion that Lisa told him she was born a Stowers and married to a Bourke simply cannot be believed.
35. It cannot be ignored either that when Lisa and the defendant went to the Land Registry in 2004 the defendant told Lisa the registered owner of the land was Theresa Taufau Stowers and the notations of the transmission and the conveyance on the Land Register would tell the defendant there and then that Theresa Taufau Stowers inherited the land from her deceased husband who was a Stowers. Which means if he did believe then that Lisa was also Theresa Taufau Stowers, then he knew that she was married to a Stowers. His evidence under cross examination by counsel for the plaintiff (page 54 transcript in translation) reads:

Question: Lisa was the name you knew at the time of commencement of your relationship?

Answer: Yes

Question: You knew Lisa’s last name at that time?

Answer: The last name I was told was Stowers

Question: Did Lisa tell you at that time her husband was a Stowers?

Answer: Yes

Question: So you knew at that time Lisa was married to a Stowers.

Answer: Yes that is what she said.

36. Suggestions by the defendant that he relied on his Solicitor to determine the true identity of Rosita Bourke before the deed was executed simply cannot make sense. When Lisa went to the office of the Solicitor, the deed of conveyance was already prepared obviously on instructions of the defendant. The vendor was Rosita Burke and the purchase price was $80,000.
37. His solicitor may have fallen short of his obligations. A search of the Land Register would undoubtedly have alerted the solicitor to make further inquiries. But that is not the issue here.
38. Admissions by the defendant under cross examination that the purchase price was paid by instalments after Lisa signed the deed supports the testimony of Lisa that she did not receive any monies from the defendant. The wording of the deed is that the full purchase price of $80,000 “has been paid to the Vendor by the Purchaser (the receipt of which is hereby acknowledged)”. The defendant obviously told his solicitor that the purchase price of $80,000 has been paid.
39. Resale of the land to a third party for just over half the price ($47,893) about 3 years later is a strong convincing indicator he did not pay a dime for the land.
40. He knew Lisa was not Rosita Burke. He instigated the fraudulent transaction. He instigated Lisa to lie to the solicitor that she was Rosita Burke. He lied to the solicitor that he has paid $80,000 for the land.
41. In summary the defendant dishonestly and fraudulently arranged for the transfer of the plaintiff’s land to him and he instigated Lisa to sign the deed of conveyance.

Damages

42. The plaintiff claims she is entitled to be compensated for the loss of her land the current market value of which was estimated at $90,000 by Mr Seru of Central Property Valuers.
43. The plaintiff also seeks general damages of $50,000 for the mental distress and anxiety she has suffered upon discovery of her land being fraudulently taken away. She said she has been the victim of the defendant’s dishonesty which has resulted in many sleepless nights; uncharacteristic short tempers, as well as stress and frustration not only for the loss of her land gifted to her by her aunt but as well as expending time and money to commence and pursue these legal proceedings.
44. Her husband of 35 years confirmed the change of personality and the visits paid to the doctor for medical assistance for the plaintiff since the discovery of the forgery.
45. Exemplary damages of $50,000 are also sought.
46. The plaintiff without doubt is entitled to be compensated for the loss of her land. Values of vacant land in the town area and its surrounding areas are generally well known. The valuer has listed some of recent sales in the Lotopa and Tuanaimato areas which adjoins onto Alafua village. $90,000 is accepted as the estimated value of the land.
47. The general rule for damages is that of restitution integral: so far as money can do it, the injured person should be put in the same position as he or she would have been if he or she had not sustained the wrong, namely if the tort had not been committed.
48. Liability for damage in the torts of negligence and nuisance has been established by decisions to be based on the concept of foreseeability. It would seem that this concept should apply to all torts. The wrongdoer would be responsible for the types of damage which a reasonable man in his position ought to have foreseen or had in his contemplation as a consequence of his wrongdoing.
49. The defendant should have either foreseen or contemplated that by fraudulently transferring the title of the land to himself and subsequently to a third party thus, depriving the plaintiff possession and ownership of her land, would naturally cause the plaintiff to be upset, anxious and distressed. He also ought to have foreseen and contemplated that the plaintiff would commence proceedings to either recover her land or claim compensation.
50. Although it is not claimed in the statement of claim and in counsels submissions, the plaintiff should also have foreseen or contemplated that the plaintiff may wish to buy land to replace the land, an exercise which takes time and would probably cost more money to purchase an equivalent area of land. Another factor of importance which the plaintiff ought to have foreseen is the sentimental value of the land which was gifted to the plaintiff by her aunt from part of her family estate.
51. Given the circumstances surrounding the fraudulent taking and the matters discussed above, general damages of $30,000 is considered fair to compensate the plaintiff.
52. As to exemplary damages, this claim in my respective view must fail. Exemplary damages or damages by way of punishment (punitive damages) were designed to punish the acts complained of. The decision of the English House of Lords in Rookes v Barnard [1964] UKHL 1; (1964) AC 1129 formulated the principles of law governing the circumstances in which exemplary damages might be awarded to a plaintiff in the case of certain torts.
53. The defendant has already been punished for his criminal offending. The majority decision of the New Zealand Court of Appeal in Daniels v Thompson [1998] NZCA 3; (1998) 3 NZLR 22 held that where there had already been conviction and sentence for the acts complained of, it follows that punishment had already been exacted and it would be unacceptable for one court to add to the punishment exacted by another. Consequently it is appropriate that there should be an absolute bar on such claims.

Conclusion

(1) Judgment for the plaintiff as follows:

• (a) Special damages of $90,000
• (b) General damages of $30,000

(2) The claim for exemplary damages is dismissed.
(3) The plaintiff is entitled to costs which if not agreed upon counsel to file memorandum of costs within 21 days.

JUSTICE VAAI